Creative strategies in negotiations, part 3

After a short hiatus, let us get back exploring some of the creative strategies to be used during protracted negotiations and in order to get the momentum going.

Strategy 5: Vary how things are involved

a) Change the institutions

(1) Unusual modification of existing institutions. At times, it is not necessary to rebuild institutions from scratch nor to reinvent the wheel. Institutions can be changed in creative and peaceful ways. Take a look at the European Economic Community back in 1967 and on how it took over the national prerogatives of making rules on worker immigration.

(2) Establishment of new institutions. In most cases, however, it is quite imperative to bring new institutions to life, especially in collapsed, fragile or frail states or non-governed spaces. This usually happens in the wake of peacekeeping operations, general elections and a first national peace accord leading to a transitional government (look at Somalia, or South Sudan, for instance).

(3) Alteration of the general system. The political, economic, or other system can be changed, not just the institutions within it. Again, the formation of the European Union is a good example for this process.

(2) Great-power non violence. A greater power uses nonviolent techniques to prevail over a lesser power in a situation where a traditional show of force would be inappropriate. This tactic is sometimes used by the US, the EU, a corporation over a supplier, etc.

c) Increase your credibility rather than the amount of our offer

The escrow system. Assure the adversary that he will get what you are offering. Had President Johnson put development money for the Mekong Delta into the Asian Development Bank instead of promising it to the North Vietnamese, they might have believed he meant to aid Vietnam.

d) Vary procedural and substantive approaches

(1) Avoidance of undesired precedents. Quid pro quo, with the intention of not setting a precedent for other situations. This strategy worked well in the Cuban missile crisis in 1962, but less so during the breach of UNSCR 1441 and the following invasion of Iraq by a US led coalition in 2003.

(2) Cake-splitting method. One side divides a scarce resource; the other side has the first choice so as to prevent the divider from distributing the resource unfairly. The Law of the Sea conference provided a good example proposing that sections of the bottom of the ocean be divided in two, with the World Bank choosing one for world use and private or national mining companies getting the remaining one.

(3) Agreement on procedures. Agreeable procedures can be established as a preface to agreeing on substantive issues. This is for the example the case in peace agreements, where the Comprehensive Agreement covers “anything, but…”, and the Implementation Agreement would cover the substantive part of the peace process.

(4) Agreement to violate an agreement. Contenders can establish an agreement they plan to violate in substance while holding on to the form. This approach is particularly useful if governments hold in common the willingness to break an agreement, but the public in each country involved does not. This is regularly the case in Civil Law, where a framework agreement will still hold even if a clause is deemed unlawful.

(5) Random division. When reasoning and bargaining seem unproductive, flipping a coin may be preferable. A random procedure was used to decide which of the elected members to the International Trade Law commission would have six terms and which would have three year terms.

(6) The moot. The parties to an issue discuss it until consensus is achieved or pay the penalty of having no decisions. Quaker consensus works this way as do UN Security Council discussions, because of members’ veto options.

(7) Single text negotiations. A mediator develops a single position that reflects the views of the parties to a negotiation. The mediator repeatedly shows the text to the parties and modifies it until a position acceptable to all sides is developed. This procedure contrasts with the standard approach of starting with the stated bargaining positions of the parties and arriving at a compromise. This procedure is used quite often in both the private and the public sector.

(8) Avoidance of tactics. Sometimes it is wise to avoid using tactics in order to enhance creativity and to avoid antagonizing the opponent. One maintains a frame of mind of “jointly looking at problems in the most flexible way possible”.

e) Use an effective group dynamics system

(1) A neutral person chairs a meeting of adversaries. This person summarizes the sense of the meeting, accepts corrections or dissents, but never takes a vote.

(2) Controlled communication. Social scientists meet with adversaries, not, ostensibly, to settle the conflict but to find solutions with underlying problems behind it. Blaming is discouraged, misperception social psychological experiments are described, the conflict is treated abstractly, and similar historical conflicts are described. Better relations between parties in the Cyprus conflict developed after controlled communication was used with diplomats from the London embassies of Cyprus, Greece and Turkey.

(3) International Encounter or Contact Group. An encounter group among statesmen, political scientists, experts and CSOs from disputing nations can be formed to build trust and then to seek an agreeable solution to a dispute. Political scientists from both Ethiopia and Somalia decided upon the proposal to make the disputed territory into a temporary neutral zone until power in the competing countries was passed to new regimes that could more readily negotiate a permanent solution. But that was 1970! A similar contact group worked it out in the Philippines, spearheaded by the wonderful Emma Leslie from the peace center in Cambodia.

(4) The problem-solving workshop. To controlled communication, Kelman adds techniques to increase the trust needed for creative problem-solving and to increase the chances that solutions will be adopted by the authorities in the participants’ own nations. Kelman has worked on Israeli-Arab workshops.

(5) Mutually acceptable restatement of arguments. If each side in a conflict states the arguments of the other side so clearly and persuasively that the other side will accept the wording, conflicts over unnecessary disagreements are minimized. Although well-known and highly regarded, this approach is not illustrated by many historical examples. Maybe the Kampala Talks in 2013 would fit this example or the Nuba Mountains Peace Agreement in 2006.

(6) Feeling out procedures. These involve subtle discussion. Parties talk around the issue. They hint at their preferences offhandedly while showing considerable interest in other’s preferences. Clear-cut proposals are articulated only after feelings have been explored in indirect fashion. One reason for using feeling-out procedures is the perceived danger that the conflict inherent in negotiation will disturb the relationship between the parties. Such relationships are guided by a norm of mutual responsiveness whereby the parties are constrained to be attentive to one another’s needs. A vigorous defense of one’s own needs implies that these needs are genuinely strong and constrains the other party to agree if at all possible; Negotiation subverts this norm because it requires both parties to make an initial demand and defend it vigorously regardless of the true strength of the needs.

f) Make the request acceptable

The Yesable proposition. The request to the adversary is framed so that his or her constraints will not prevent the request from being accepted. Fisher reports that in his experience there is a widespread tendency not to consider what the other side can realistically be expected to accept (Fisher, R (1969). International Conflict for Beginners. New York: Harper & Row). In a conflict, each side tends to see itself as reasonable because it is reasonably rejecting some outrageous demand of the other side. The parties rarely try to formulate a proposition that is so reasonable that the other side would have a hard time rejecting it.

g) Make the request fair

Principled negotiation. Rather than focusing on their bargaining positions, negotiators focus on their interests and brainstorm proposals that meet objective criteria of fairness, legitimacy, practicality, and lack of pressure forcing acceptance.

h) Providing for face-saving

(1) Effective timing to save face. A time can be found for an opponent to take a desired action without losing face.

(2) Unilateral settlement after secret negotiations. If opponents’ bargaining positions are fairly close together, and if these opponents can informally find out what each other will settle for, sometimes each party can unilaterally perform its part of an agreeable settlement if open negotiations are embarrassing. If the opponents are governments that do not recognize each other, they can come to an agreeable settlement by secret negotiations handled by a third party, such as the Red Cross, and then simply carry out the settlement without signing a treaty that would require diplomatic recognition.

(3) The disownable concession. An exchange of concessions can be proposed through an intermediary whose statement can be disowned if the adversary is not interested in the proposal.

Strategy 6: Vary the reasons why things happen

a) Convert the opponent

Persuasion to or acceptance of new, integrative values. Conversion can be based on an acceptance of new, more productive values, not simply on coercion or exchanges. When management accepted the rights of unions to exist in the United States, the resulting increases in wages raised profits rather than lowering them, as feared, because of the increase in the resources of the consumers who were also union members. The same principle might apply in relation to American corporations that currently pay low wages to labor in other countries.

b) Rationalize the opponent’s position

(1) Rationalization of a loss. A loss can be rationalized with reference to one’s fundamental principles – for example, one party’s material gain is granted because of the other party’s sense of justice.

(2) The “Donkey Beaten Over The Head” Interpretation. A victim interprets conflict-provoking behavior as an attempt by the protagonist to get attention for grievances. If granting attention to the grievances is acceptable to the victim, the protagonist may stop the negative behavior.

c) Give a new meaning to the object of the dispute

(1) Coupling. A new meaning or signal can be added to a diplomatic action to facilitate negotiation. The United States could interpret Soviet agreement to a routine trade treaty as an increase in detente politics. The image of the Soviet Union at that time would be damaged if it failed to live up to this peaceful invitation. This is still a preferred strategy in a range of hot spots, where a peace treaty follows the promise of a trade agreement. This is certainly France’s strategy in Francophone countries.

(2) Decoupling. A troublesome meaning or signal of a diplomatic action can be removed to facilitate agreement. One way this can occur is to establish conventions to easily decide the meaning that diplomatic actions will have and that formerly had to be negotiated. The order of precedence, or importance, of ambassadors for centuries was negotiated on the basis of the relative status of the ambassador’s sovereign, an ambiguous matter.

d) Accept a settlement for reasons different from the opponents

(1) Common means for different ends. When agreement cannot be secured on the criteria for a good program, an acceptable program can still be found that will use a common means to achieve different goals of the parties.

(2) Acceptance of new goals. Ways can be found in which intrinsic goals of one party can become extrinsic goals for another party. Under the sphere of influence system, country A gives up claims of hegemony over nations near its rival, country B. The rival, by developing and policing the nations in its sphere of influence, provides profitable trading partners for the first power.